Do you sell to consumers online? Pay attention to these 3 legal duties!

More and more companies are trying to expand their sales market by selling their products directly (and online) to consumers (B2C) in addition to online business-to-business (B2B) sales. In this article written for MIXonline , Valerie Lipman and Joost van Dongen discuss 3 legal duties when selling online to consumers.

Why B2C sales?

Major benefits include improving margin (cut out the middleman), expanding the sales market and optimizing cash flow since consumers generally pay immediately.

In addition, selling online to consumers seems like a relatively small step for business operations. After all, the platform is already there and, in many cases, the processes are already set up to handle online orders. Sounds good, but should you make this move be aware that different rules apply to an online B2C transaction than to a B2B transaction.

Whereas in B2B there is in principle a lot of contractual freedom, in B2C this is significantly less and there are mandatory rules that protect consumers. These include information duties, rules on unreasonably onerous clauses in general terms and conditions, and the right of withdrawal.

1️ The information duties in online sales to consumers

Consumers enjoy additional protection when entering into a contract online. The reason for this is that when consumers are orienting to purchase, they cannot provide themselves with information in the same way they would in a store. For example, there is no store staff online who can directly explain the product. Also, the product cannot be grabbed to assess its suitability. Therefore, the law provides that online sales to consumers are subject to certain information requirements.

For example, the seller is obliged to provide information on the main characteristics of the product (think color, price and size, etc.). In addition, sufficient information must be provided about the ordering process, method of payment, delivery/delivery time and performance of the agreement. The seller must also make it clear whether or not the right of withdrawal can be invoked.

These rules are of mandatory law. This means that they cannot be deviated from to the detriment of the consumer (for example, by a deviating provision in the general terms and conditions). Such a provision is invalid.

What information should consumers receive?

If you sell to consumers through your online store, you must provide the following information to consumers, among other things:

• The identity and address of the seller;
• contact information (phone number and e-mail address);
• Chamber of Commerce number;
• trade name; and
• The manner in which the agreement is reached;
• The main characteristics of the case (color, material, size, application, etc.);
• The total price/price of the product including all taxes;
• additional freight, delivery, postage and any other charges;
• about the ordering process, method of payment, delivery/delivery time and performance of the agreement;
• about complaint handling and vendor policies;
• Information on the (applicability or not) of the right of recall (consider the conditions and costs of return).

When providing this information, it is important to do so in a clear and understandable way . No small print, in other words. With regard to information that can be regarded as essential for the consumer's decision-making process, the mere reference to the general terms and conditions is not sufficient.

In addition, all information after the order is completed should be made available to the consumer via e-mail, invoice or an online account.

Consequences of violating information duties

In any legal proceedings between the seller and the consumer, the court should review on its own initiative whether the seller has complied with providing the information. Failure to provide (or incomplete) information may affect the seller's position.

The court may reduce a seller's claim against the consumer (for example, a claim for payment, when the consumer has not paid) by up to 50% when information duties have not been met. In addition, failure to provide correct or incomplete essential information may in some cases be considered an unfair trade practice, under which the contract in question may be annulled to protect the consumer.

2️ Unreasonably onerous clauses

A second rule that applies in B2C transactions relates to the content of general terms and conditions. General terms and conditions often try to protect the seller's interests, but should not go too far in this when selling to consumers. The law contains two lists that are divided into the gray and the black list. If clauses in general terms and conditions appear on the black list , they are unreasonably onerous and invalid. The seller cannot then invoke such a clause.

If a clause from the general terms and conditions appears on the gray list, it is presumed to be unreasonably onerous. The seller must then prove that the clause is not unreasonably onerous in this case. Failing this, a grey list clause is also invalid.

Under the blacklist, for example, a consumer may not be restricted in his ability to claim damages from the business owner. Such a provision is prohibited and invalid. Provisions limiting the consumer's ability to rescind the contract are also not permitted. When your customer base shifts from business owners to consumers, it is advisable to check whether your general terms and conditions are "consumer-proof.

By the way, the gray and black lists apply to both physical and online sales. Either way, if you do business with consumers, your terms and conditions deserve extra attention.

3️ The right of withdrawal

Another important difference between online B2B and B2C transactions is the right of withdrawal. The right of withdrawal means that online consumers may return a product within 14 days of receipt without giving reasons. In principle, this right of withdrawal does not apply to business customers buying products online since such purchases qualify as a normal form of purchase and not a consumer purchase.

By the way, consumers who order a product online do not always have the option of withdrawal. In fact, there are exceptions. For example, products that have been specially customized cannot be returned (for example, products that have personal engraving). The same applies to perishable goods or products where health risks or hygiene play a role when returned (think, for example, of mouth caps that have been removed from their packaging). It is therefore important to check carefully in advance whether certain products fall under one of these exceptions.

Extension of the withdrawal period

If this is the case, the consumer should be informed about it before the conclusion of the contract. After all, the conditions of the right of withdrawal count as a duty to provide information. If you as a seller do not fulfill this specific duty to inform, the consumer is given an extended withdrawal period under the law. This period is extended until you as a seller have (as yet) correctly informed the consumer. From the moment of informing, the period used by the seller begins. If the seller fails to communicate at all, the right of withdrawal only expires 12 months after delivery of the product. Obviously, such a long withdrawal period leads to undesirable situations. It is therefore recommended that consumers be fully and timely informed.

So what should you look out for?

When selling to consumers online, special rules apply, many of which are mandatory law . Therefore, before you start selling to consumers online, check whether your website has been set up correctly, whether all information obligations have been fulfilled and whether the general terms and conditions have been adapted. Failure to do so can have far-reaching consequences for your legal position.

If you have questions about what this means specifically for your online sales, or are you unsure if your sales process is set up correctly? If so, please contact our specialists Valerie Lipman or Joost van Dongen.